Bangalore District Court
Kodava Samaja vs Udiyanda M Muddaiah on 6 July, 2024
KABC010142912016
IN THE COURT OF THE LXII ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-63), BENGALURU.
DATED: THIS THE 6 th DAY OF JULY, 2024
P R E SE N T
Sri A. EARANNA, M.Com., LL.M.,
LXII Addl. City Civil & Sessions Judge,
Bengaluru.
CRIMINAL REVISION PETITION No.478/2016
PETITIONER : Kodava Samaja
(A Registered Society),
No.7, 1st Main Road,
Vasanth Nagar,
Bangalore - 560052,
(Represented by its Secretary
Sri.C.K.Subbaiah,
S/o.Late C.P.Kuttappa,
Aged about 56 years.
(By Sri.M.B.Ravi Kumar, Adv.)
V/S
RESPONDENT: Sri.Udiyanda M.Muddaiah,
S/o Sri.Medappa,
Aged about 60 years,
R/at No.1264, 13th Cross Road,
Vishwabharathi Housing
Complex, 2nd Stage, Girinagar,
Bangalore - 560 085.
(By Sri.G.J., Advocate)
2 Crl.R.P.No.478/2016
ORDER
This petition is filed under Section 397(1) R/w Section 399 of Cr.P.C. challenging the Order dated 25.4.2016 passed by the VIVIII ACMM, Bengaluru in CC No. 25371/2009.
2. The brief facts of the petition that the complainant has filed the complaint under Sec. 200 of Cr.P.C. r/w 500 of I.P.C. stating that the respondent was a Senior member of the complainant Samaja who was aware of the true facts had got printed pamphlet making false, derogatory, highly defamatory and baseless allegations. Thereafter the complainant as per the decisions taken in the committee meeting held on 4.12.2007 has issued the show cause notice to the respondent. Subsequently filed the complaint before the learned VIII ACMM, Bengaluru, Bengaluru. After hearing the complainant the trial Court has taken the cognizance and issued summons to the accused. Instead of issuing the NBW against the accused/respondent the Court has dismissed the case for non prosecution vide order dated 25.04.2016. This is the order challenged by the petitioner.
3 Crl.R.P.No.478/2016
3. After service of notice respondent has appeared through his counsel.
4. Heard the arguments. Perused the records.
5. The following points arise for the consideration.
1) Whether the petitioner made out grounds to set-aside the order dated 25.04.2016 passed by the learned VIII ACMM, Bengaluru?
2) What order?
6. The findings of the Court on the aforesaid points are as under :
Point No.1 :- In the Negative Point No.2 :- As per final order for the following:
REASONS
7. POINT No.1: Counsel for the petitioner filed the written arguments stating that he Court ought to issue NBW against the accused and proceed with the case. Inspite of it Court has dismissed the complaint for non prosecution which is contrary to law. Therefore it is necessary to set aside the order passed by the trial Court. If revision petition is allowed no injustice is caused to the respondent and he has relied the following judgments;1. AIR 1998 SC 596 Associated Cement 4 Crl.R.P.No.478/2016 Co. Ltd. Vs Keshavanand 2. Crl. Appeal No. 150/79 Agriculture Produce Market Committee Vs S.S. Tandur. 3. 2001 Crl. L.J. 2144 S. Shankar Vs C.V. Pasupathi 4. ILR 2004 KAR 1989 H. Raghavendra Rao Vs Buckeye Corportaion (I) Ltd.
8. Counsel for the respondent filed the written arguments stating that revision petition filed by the petitioner is not maintainable, same is liable to be dismissed. When the Court has dismissed the complaint for non prosecution it amounts to acquittal of the accused for the offence. That petitioner ought to approach Hon'ble High Court of Karnataka but not before this court. This Court has no jurisdiction to entertain the revision petition. When Court has dismissed the complaint, it amounts to acquittal of the accused. Therefore he prays to dismiss the revision petition and also he has relied on the citations and copy of judgments
1. Crl. Revision Petition No.25034/2018 passed by CCH- 13 of City Civil Court, Bengaluru
2. CC No. 25370/2009 M.N. Belliappa Vs Udiyanda M. Muddaiah 5 Crl.R.P.No.478/2016
3. 2014 Crl. L.J. 3108 - Kerala High Court - M/s Chettinad Cement Corporation Ltd., Vs The Proprietor, M/s Rugmini Steels, Vattiyoorkavu Thiruvananthapuram
4. (2016) 13 SCC 243 - V.K. Bhat Vs G. Ravi Kishore and another - Criminal Procedure Code, 1973 - Ss.397(3), 399 & 401(4) and Ss. 256 and 378 - Second revision - Non- maintainability of - Case of cheque dishonour - complaint dismissed for non-appearance of respondent complainant- revision again dismissed in default - But second revision allowed and complaint restored - High Court upholding the same - Invalidity of
5. Krishna Kumar Gupta Vs Mohammed Jaros and others dated 5.8.2002 - the order of the dismissal of a complaint passed in exercise of powers vested by section 256 of the Cr.P.C. amounted to the acquittal of the accused and only an appeal may be filed against such an order of acquittal before the superior Court of appeal in view of the constant view of this Court and other High Court on this question cited by the counsel for the petitioner. The counsel for the 6 Crl.R.P.No.478/2016 respondent has also not raised any quarrel on the proposition of law laid down in the cited judgments.
Based on these judgments he prays to dismissed the criminal revision petition.
9. On perusal of the records that the respondent was senior member of the complainant Samaja and he was aware of true facts had got printed pamphlet on 24.11.2007 making false, derogatory, highly defamatory and baseless charges of misrule by governing council between the period 1998 and 2006. The entire contents of the pamphlet is that the petitioner running educational institution for providing better education as well as who are poor person that the respondent gave pamphlet then making false, derogatory, highly defamatory and baseless allegations. Then the petitioner had filed the complaint before VIII ACMM, Bengaluru U/s 200 of Cr.P.C. r/w 500 of I.P.C. on 21.02.2009 to take cognizance of offence and for the said act of the respondent. Thereafter Court has taken cognizance and issued process against the respondent/accused. Then the complainant and respondent are absent and respondent has filed the criminal revision 7 Crl.R.P.No.478/2016 petition before the Hon'ble High Court of Karnataka. After disposal of the same, petitioner has not diligent to prosecute the case. Then the Court has dismissed for non prosecution.
10. Petitioner has taken grounds stating that learned VIII ACMM, Bengaluru Court ought to issue NBW against the accused instead of dismiss the complaint. After recording the plea ought to post the case for recording the evidence of complainant without securing the accused and without issuing the NBW as contemplated under Cr.P.C. The Court has mechanically dismissed the complaint. The Court has failed to proceed with the case but dismiss the compalint for non prosecute which is contrary to law. Therefore he prays to set aside the order and direct the Court to proceed with the case.
11. On perusal of the records it is not disputed respondent is member of the Kodava Samaja who is complainant. The complainant has stated that the respondent has printed the pamphlet making false, derogatory, highly defamatory and baseless allegations against the petitioner. He has filed the private complaint U/s 200 of Cr.P.C. then it is 8 Crl.R.P.No.478/2016 the bound and duty of the complainant to present before the court and proceed with the case. However respondent had approached the Hon'ble High Court of Karnataka challenging the process issued by the Court then Hon'ble High Court of Karnataka has dismissed the petition as withdrawn by the respondent. Then it is bound and duty of the petitioner to present before the Court and proceed with the case. On going through the records as well as order passed by the learned 8 th ACMM, Bengaluru that the matter is of 2009, he was not diligent to prosecute the case then the Court has dismissed the complaint for non prosecution. On perusal of the records that complainant has not appeared before the Court then Court has no alternative except by dismissing the complaint for non prosecution. The counsel for the petitioner has argued that Court ought to issue NBW against the respondent instead of it dismissed for non prosecution. On going through the records that the complainant has not appeared before the Court. It is him knock the doors of the justice stating that respondent has making false, derogatory, highly defamatory and baseless allegations against the petitioner. From 2009 he 9 Crl.R.P.No.478/2016 was not present for proceed with the case. Under such circumstances the Court has dismissed the complaint.
12. On perusal of Section 256 of Cr.P.C. - 256. Non- appearance or death of complainant. (1)If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day :Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.(2)The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.
13. As per above said provision that the court may proceed as per section 256 of Cr.P.C., in the event of non 10 Crl.R.P.No.478/2016 appearance of the complainant nor death of the complainant. In the present case as per the order of learned VIII ACMM, Bengaluru, since 2009 complainant is not diligent to proceed with the case, then the court has passed the impugned order. Then as per above said provision that complaint is dismissed for non prosecution. Then the accused is acquitted for the alleged offence. That the petitioner prays to set aside the order passed by the learned VIII ACMM, Bengaluru on 25.4.2016 stating that court ought to issue NBW against the accused but the court has dismissed the complaint for non prosecution. In support of his contention he has relied the judgment of 1. AIR 1998 SC 596 Associated Cement Co. Ltd. Vs Keshavanand - with due respect to the ratio laid down in the above said judgment is not applicable to the present case on hand. In the above said judgment that discretion as to whether personal attendance of complainant should be dispensed with or not has to be exercised judicially. As per the order of the court it shows that the complainant is not diligent to prosecute the case more over matter of the year 2009. hence no grounds made out to adjourned the case. Complaint is dismissed for non prosecution. Therefore the court after considering that 11 Crl.R.P.No.478/2016 the complainant is not diligent and dismiss the complaint for non prosecution. 2. Crl. Appeal No. 150/79 Agriculture Produce Market Committee Vs S.S. Tandur - wherein the complainant called out absent hence complaint is dismissed based on the order passed by the court as approach the Hon'ble High Court of Karnataka then court has allowed the application and directed the court to proceed with the case. In the present case no such application were filed by the complainant from 2009 he was not diligent in proceeding with the case. Then the court has passed the above said order. 3. 2001 Crl. L.J. 2144 S. Shankar Vs C.V. Pasupathi - based on the above said judgment counsel for the petitioner prays to set aside the order passed on 25.4.2016. with due respect to the above said judgment, is not applicable to the present case on hand.
14. With due respect to the ratio to judgments relied on by the counsel for the respondent, same are applicable to the present case on hand. On going through the records that it does not reveals that complainant nor his counsel were present even prior to the said order. As the petitioner 12 Crl.R.P.No.478/2016 approach the court of law to take the cognizance and issue process against the respondent as he had printed the pamphlets making false, derogatory, highly defamatory and baseless allegations. When he approach the court of law to take legal action against the respondent then it is duty to appear before the court and to proceed with the matter. If not his counsel ought to appear before the court. Even though court has not passed the order dispensing the complainant and he has not passed the order that for dispensing the complainant for appearance before the court. Under such circumstances it is his duty to appear before the court. Further no innocent person prosecuted for without his fault. As per the section 255 of Cr.P.C. if the court has passed the order then it amounts to acquittal of the party. Then he ought to approach the proper forum seeking to quash the order. However that for the above said reason as well as citations relied upon by the respondent, it reveals that there is no reason to interfere and passed the order by setting aside the order passed by the trial court. Therefore the petitioner has not made out sufficient and reasonable grounds to allow the 13 Crl.R.P.No.478/2016 application. Accordingly, Point No.1 is answered in the Negative.
15. POINT NO.2 :- In view of the discussions made on Points No.1, I proceed to pass the following:
ORDER The Criminal Revision Petition preferred by the petitioner U/Sec.397(1) r/w section 399 of Cr.P.C is hereby rejected.
(Dictated to Stenographer, transcripted by her, computerized, corrected by me and then pronounced in open court on this the 6 th day of July, 2024) (A. EARANNA) LXII Addl.City Civil & Sessions Judge, (CCH-63), Bengaluru.